The Warren Court As Nostalgic Ideal

August 02, 1988|By Reviewed by Paul Reidinger, a lawyer and novelist.

Packing the Courts

By Herman Schwartz

Scribner`s, 242 pages, $19.95

``An effort to change fundamental constitutional principles and rulings,`` Herman Schwartz allows in ``Packing the Courts,`` ``is, of course, not unique to Ronald Reagan.`` But Reagan has been more persistent and more meticulous than any other recent president in the pursuit of his

constitutional vision, and the results, though mixed, horrify Schwartz, who teaches law at American University in Washington, D.C.

The constitutional universe, for Schwartz, is black and white, good and evil. The countless shades of gray that make up constitutional law as it is understood by the less partisan do not exist. The Warren court is good; that is all. Its rulings that illegally seized evidence, even if reliable, cannot be used in a prosecution and that the right to abortion is protected by the Constitution are good. Ronald Reagan is evil; so are conservatives because they do not accept the ``denigration of the rugged, Darwinian individualist`` that has occurred over the last 50 years in the court`s decisions, or ``the ever more powerful role of government in social and economic matters`` the court has been willing to sanction.

Schwartz`s attitude toward the Warren court of the `50s and `60s is nothing less than celebratory; this was the Golden Age; decisions began ``to breathe life and vigor into the constitutional guarantees of justice and liberty.``

Schwartz is terrified that a Supreme Court dominated by Reagan appointees will ``turn back the clock`` and overrule some of those hallowed decisions. He is especially concerned about Roe v. Wade, the 1973 ruling that made the choice of abortion a constitutional right.

One understands his anxiety; Roe is vulnerable. Of the seven justices who made up the original majority, only three remain (though John Paul Stevens, who succeeded William O. Douglas in 1975, supports Roe). The more serious threat to Roe is its own legal rationale. The decision is founded on the constitutional right to privacy, but as Supreme Court nominee Robert Bork pointed out to his extreme detriment last year, that general right is not in the Constitution. The Warren court first inferred its existence in a 1965 case, Griswold v. Connecticut. But even many liberal legal scholars have agreed with Bork that the plain language of the Constitution cannot easily be interpreted to protect a general right to privacy or the right to choose an abortion.

Schwartz does not distinguish between policy questions and constitutional rights. For him, good policies-the policies he favors-are constitutional; bad policies are unconstitutional.

Schwartz advocates law with a human face. That may be good. What is not good is the degree to which he is willing to veer from the constitutional design to realize his vision of justice and liberty. The protection the Constitution provides for individual freedoms is not the Bill of Rights, broadly interpreted, but the glacier of process: slow, inertial, keeping impatient zealots from imposing on others their sense of what is just and what is not.